Judge: Michael P. Linfield, Case: 21STCV17933, Date: 2023-04-21 Tentative Ruling
The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.
Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.
Case Number: 21STCV17933 Hearing Date: April 21, 2023 Dept: 34
SUBJECT: Motion to
Compel Defendant Kelly Pipe Co., LLC to Produce Documents and Complete Written
Responses for Production of Documents
Moving Party: Plaintiff
Presciliano Contreras
Resp. Party: Defendant Kelly Pipe Co., LLC
SUBJECT: Motion to
Compel Defendant Kelly Pipe Co., LLC to Provide Complete Written Responses to
Form Interrogatories-Employment
Moving Party: Plaintiff
Presciliano Contreras
Resp. Party: Defendant Kelly Pipe Co., LLC
Plaintiff’s
RPDs Motion is DENIED.
Plaintiff’s
FROGs Motion is DENIED.
BACKGROUND:
On May 12, 2021,
Plaintiff Presciliano Contreras filed his Complaint against Defendants Kelly
Pipe Co., LLC, JFE Shoji America, LLC, JFE Shoji America Holdings Inc., JFE
Shoji Steel American, Inc., R. Bourgeois JFE Shoji Magnetic Lamination, Inc.,
Art Shelton, Steve Livingston, and James Fiorillo. The Complaint lists the
following causes of action:
(1) Discrimination in
violation of the Fair Employment and Housing Act (“FEHA”);
(2) Hostile work environment
in violation of the FEHA;
(3) Retaliation in
violation of the FEHA;
(4) Failure to prevent
discrimination, harassment, or retaliation in violation of the FEHA;
(5) Breach of express
oral contract not to terminate employment without good cause;
(6) Breach of implied-in-fact
contract not to terminate employment without good cause;
(7) Negligent hiring,
supervision, and retention;
(8) Wrongful termination
of employment in violation of public policy;
(9) Whistleblower
retaliation; and
(10) Intentional
infliction of emotional distress.
On July 30, 2021,
Defendant James Fiorillo filed his Answer.
On July 30, 2021,
Defendant Kelly Pipe Co., LLC filed its Answer.
On September 22,
2021, by stipulation of the Parties, the Court dismissed without prejudice
Defendants Art Shelton and Steve Livingston from the Complaint.
On January 18, 2022,
by stipulation of the Parties, the Court dismissed without prejudice Defendants
JFE Shoji America, LLC, JFE Shoji America Holdings Inc., JFE Shoji Steel
America, Inc. (erroneously identified in the Complaint as JFE Shoji Steel
American, Inc.), and R. Bourgeois JFE Shoji Magnetic Lamination, Inc.
On February 16, 2023,
Plaintiff filed: (1) Motion to Compel Defendant Kelly Pipe Co., LLC to Produce
Documents and Complete Written Responses to Requests for Production of
Documents (“RPDs Motion”); and (2) Motion to Compel Defendant Kelly Pipe Co.,
LLC to Provide Complete Written Responses to Form Interrogatories-Employment
(“FROGs Motion”). With each of the motions, Plaintiff filed: (1) Separate
Statement; and (2) Proposed Order.
On April 10, 2023,
Defendant Kelly Pipe Co., LLC (“Defendant”) filed: (1) Opposition to
Plaintiff’s Motion to Compel Further Reponses to Requests for Production
(“Opposition to RPDs Motion”); and (2) Opposition to Plaintiff’s Motion to
Compel Further Responses to Form Interrogatories – Employment Law (“Opposition
to FROGs Motion”).
On April 14, 2023,
Plaintiff filed his replies (“Reply to RPDs Motion”) and (“Reply to FROGs
Motion”).
ANALYSIS:
For ease of analysis, the Court
considers both motions together.
I.
Legal
Standard
On receipt of a response to form
interrogatories, special interrogatories, and/or demand requests, the
propounding and/or demanding party “may move for an order compelling further
response” if: (1) the response is evasive or incomplete; (2) the representation
of inability to comply is inadequate, incomplete, or evasive; or (3) the
objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd.
(a), 2031.310, subd. (a).)¿¿¿
“Unless notice of this motion is
given within 45 days of the service of the verified response, or any
supplemental verified response, or on or before any specific later date to
which the demanding party and the responding party have agreed in writing, the
demanding party waives any right to compel a further response” to the demands
or interrogatories. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd.
(c).)
II.
Discussion
A.
Form
Interrogatories Propounded
Plaintiff propounded the following
form interrogatories (“FROGs”) on Defendant: 200.1 through 200.6, 201.1 through
201.7, 207.1 through 207.2, 208.2, 209.2, 211.1 through 211.3, 214.1 through
214.2, 215.1 through 215.2, and 216.1. (FROGs Motion, Exh. 1.)
B.
Requests
for Production of Documents Propounded
Plaintiff propounded the following
requests for production of documents (RPDs) on Defendant:
REQUEST FOR PRODUCTION NO. 8:
All electronic mail between or
among defendant Kelly Pipe Co., LLC and any employee of defendant that refer or
relate to the termination of plaintiff Presciliano Contreras’s employment.
REQUEST FOR PRODUCTION NO. 9:
All electronic mail between or
among the decision-makers relating to the termination of plaintiff Presciliano
Contreras’s employment.
REQUEST FOR PRODUCTION NO. 14:
All documents supporting defendant
Kelly Pipe Co., LLC’s contention that plaintiff, Presciliano Contreras, was
unqualified or incompetent to work in the last job that plaintiff held with
defendant.
REQUEST FOR PRODUCTION NO. 15:
All documents showing the exact
deficiencies that defendant Kelly Pipe Co., LLC contends plaintiff, Presciliano
Contreras, had that resulted in plaintiff’s being unqualified or incompetent to
work in the last job that plaintiff held with defendant.
REQUEST FOR PRODUCTION NO. 27:
All documents showing all internal
training and classes that defendant Kelly Pipe Co., LLC provided to plaintiff,
Presciliano Contreras, in an attempt to improve any aspect of plaintiff’s work
performance for defendant.
REQUEST FOR PRODUCTION NO. 28:
All documents showing all external
training and classes that defendant Kelly Pipe Co., LLC provided to plaintiff,
Presciliano Contreras, in an attempt to improve any aspect of plaintiff’s work
performance for defendant.
REQUEST FOR PRODUCTION NO. 34:
All documents that involve or
otherwise reflect any claim for wrongful termination of employment or
harassment involving defendant Kelly Pipe Co., LLC during the past ten years.
REQUEST FOR PRODUCTION NO. 35:
All documents that show the names,
addresses, and telephone numbers of all individuals whose employment defendant
Kelly Pipe Co., LLC involuntarily terminated during the past ten years at the
same location where plaintiff, Presciliano Contreras, was employed.
REQUEST FOR PRODUCTION NO. 36:
All documents that show the names,
addresses, and telephone numbers of all individuals whom defendant Kelly Pipe
Co., LLC forced to resign during the past ten years at the same location where
plaintiff, Presciliano Contreras, was employed.
REQUEST FOR PRODUCTION NO. 37:
All documents that show the names,
addresses, and telephone numbers of all individuals who have made formal or
informal complaints of harassment, retaliation, discrimination, or wrongful
termination of employment to defendant Kelly Pipe Co., LLC during the past ten
years at the same location at which plaintiff, Presciliano Contreras, was
employed.
REQUEST FOR PRODUCTION NO. 41:
All EMPLOYEE MANUALS in effect at
the time defendant Kelly Pipe Co., LLC hired plaintiff, Presciliano Contreras.
(For purposes of this request, the phrase “EMPLOYEE MANUALS” is defined as all
written documents, including company policies, company procedures, employee
handbooks, training materials, and human resources publications of any type.).
REQUEST FOR PRODUCTION NO. 55:
All documents showing that
defendant Kelly Pipe Co., LLC’s involuntary termination of plaintiff
Presciliano Contreras’s employment was necessitated by defendant’s need to
reduce its work force.
REQUEST FOR PRODUCTION NO. 57:
All documents that indicate who
participated in defendant Kelly Pipe Co., LLC’s decision to reduce its work
force.
REQUEST FOR PRODUCTION NO. 58:
All documents that defendant Kelly
Pipe Co., LLC relied on in making the decision to reduce its work force.
REQUEST FOR PRODUCTION NO. 61:
All documents showing all CRITERIA
that defendant Kelly Pipe Co., LLC used to determine the order in which
employees were to be involuntarily discharged in defendant’s work force
reduction.
REQUEST FOR PRODUCTION NO. 63:
All EEO-1, EEO-2, EEO-3, EEO-4,
EEO-5, and EEO-6 reports reflecting defendant Kelly Pipe Co., LLC’s employment
practices during the past ten years.
C.
Discussion
1.
The
Parties’ Arguments
Plaintiff moves the Court to order
Defendant to: (1) produce all documents at issue in the RPDs within ten days;
(2) produce verified, complete further written responses to the RPDs within ten
days; and (3) provide further responses to the FROGs within five days. (RPDs
Motion, p. 7:11–17; FROGs Motion, p. 5:16–18.)
Defendant opposes the motions,
arguing: (1) that the Court lacks jurisdiction to consider them because
Plaintiff failed to timely file the motions, citing Sexton v. Superior Court
(1997) 58 Cal.App.4th 1403; (2) that the motions should be denied because
Plaintiff failed to make a reasonable and good faith attempt to resolve the
discovery issues presented; and (3) that the motions are moot because Defendant
will provide supplemental responses prior the hearing date. (Opposition to RPDs
Motion, pp. 3:6–8, 4:7–9, 5:5; Opposition to FROGs Motion, pp. 3:3–5, 4:4–6,
5:2–3.)
In his Replies, Plaintiff argues:
(1) that the motions were timely filed, and in the alternative that relief
should be granted pursuant to Code of Civil Procedure section 473, subdivision
(b); (2) that Plaintiff engaged in further meet and confer efforts; and (3)
that Defendant has yet to produce any supplemental responses. (Reply to RPDs
Motion, pp. 1:18, 2:7–8, 4:2–3, 4:13–14; Reply to FROGs Motion, pp. 1:18,
2:8–9, 4:5–6, 4:16–17.)
2.
The
Issues
a.
Ancillary
Issues
The issues other than timeliness
are easily resolved. The Court does not have any evidence that further
responses to the FROGs or RPDs have been submitted. Plaintiff’s evidence of
e-mail communications between Counsel on these discovery issues is sufficient
for the Court to find that the meet and confer requirement has been met. (Reply
to RPDs Motion, Exhs. 2–3; Reply to FROGs Motion, Exhs. 2–3.)
b.
Timeliness
The Court
considers whether the motions were timely filed.
The RPDs and FROGs were initially
served on April 21, 2022. (RPDs Motion, p. 1:3–5.) Supplemental responses were
submitted on December 29, 2022, and verifications were provided on December 30,
2022. (Id. at p. 1:5–8.)
Because the verifications were
given by e-mail (i.e., electronic service), the 45-day period provided for by
Code of Civil Procedure sections 2030.300, subd. (c) and 2031.310, subd. (c) was extended by
two days. (Code Civ. Proc., § 1010.6, subds. (a)(3)(B) and (a)(3)(C).)
Forty-seven days after December 30, 2022 was February 15, 2023, which was a
Wednesday and not a court holiday. (December 30, 2022 is the proper date to
consider because the 45-day period starts upon notice “of the of the service of
the verified response”, and the responses here were not verified until December
30, 2022.)
The motions were filed on February
16, 2023. Thus, the motions were late filed.
3.
Relief
Pursuant to Code of Civil Procedure Section 437
The Court further considers whether
the Court should provide Plaintiff relief pursuant to Code of Civil Procedure
section 473, subdivision (b). For the reasons stated below, the Court
determines that it is not.
a.
The 45-Day Limit is
Mandatory
Defendant correctly argues that the
45-day limit is mandatory, requiring that the Court deny the motions. (Sexton,
supra, at 1404.)
b.
Section 473 Relief is Unavailable Because the Discovery Act
Provides More Limited Relief
“Relief under section 473 is
unavailable when the discovery act provides analogous, if more limited,
relief.” (Zellerino v. Brown (1991) 235 Cal.Ap.3d 1097, 1107; see also Peltier
v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1823–24 [“We did not
hold in Zellerino that the discovery act had abrogated section 473 to
any extent — merely that the discovery act’s provisions for relief, as part of
a comprehensive and specific statutory scheme, would apply in the discovery
context rather than the more general provisions of section 473 where the
discovery act’s provisions differed materially.”])
The language of section 473 appears
in sections 2030.290 and 2031.300 of the discovery act, but it does not appear
in sections 2030.300 and 2031.310 of the discovery act. The Court believes that
this is an intentional decision by the Legislature in enacting these statutes.
4.
Harmonizing Section 473
with the Discovery Statute Requires Denying Such Relief Here
The Court also considers the consequences
of granting an extension to the 45-day period under section 473 – such consequences
would be severe and negative for both trial courts and parties. Any party or
attorney can claim that there had been a mistake, inadvertence, or neglect. Discovery
disputes would drag on for months and months.
The 45-day period would become a nullity.
The Court of Appeal considered a
similar issue in the context of dismissal statutes, holding that counsel’s
fault under section 473 does not state grounds for relief from dismissal under
Code of Civil procedure section 583.410. “In our experience, nearly every
discretionary dismissal is caused by the mistake, inadvertence or neglect of
the plaintiff’s attorney. . . . [If section 473 were to apply to section
583.410], then section 473 in effect nearly nullifies the discretionary
dismissal statutes, as few dismissals entered thereunder would ever assuredly
be final.” (Peltier, supra, at pp. 1816, 1825.) The same holding applies here in the case of
the 45-day period for further discovery responses. When harmonizing section 473
with the discovery statutes, as the Court of Appeal did in Peltier, it
becomes clear to the Court that section 473 relief must be denied here in order
to preserve both section 473 and the discovery act.
5.
The
Court Declines to Exercise its Discretion Here
Relief under section 473,
subdivision (b) is discretionary. Plaintiff cites Comunidad en Accion v. Los
Angeles City Council (2013) 219 Cal.App.4th 1116 for the proposition that
any mistake counsel made did not involve professional judgment and was a
mistake anyone could have made. (Reply to RPDs Motion, p. 3:12–15.)
In Comunidad en Accion, the
party making the mistake explained what the mistake was: a calendaring error.
In contrast, Plaintiff’s Counsel is still arguing here that the motions were
timely filed. (Reply to RPDs Motion, pp. 1:19–27, 2:1–6.) By arguing that there
was no mistake, but then arguing in the alternative that if there was a mistake
it did not involve professional judgment, it appears to the Court that
Plaintiff’s Counsel is attempting to eat its cake and have it too. Unlike a mere
calendaring error, the Court concludes here that the present mistake was a
misapprehension of a statutory deadline, which falls below the professional
standard of care.
“Conduct falling below the
professional standard of care, such as failure to timely object or to properly
advance an argument, is not therefore excusable. To hold otherwise would be to
eliminate the express statutory requirement of excusability and effectively
eviscerate the concept of attorney malpractice.” (Zamora v. Clayborn Contracting
Group (2002) 28 Cal.4th 249, 258, quoting Garcia v. Hejmadi (1997)
58 Cal.App.4th 674, 682.)
For the reasons discussed above, the
Court does not believe that it has discretion to grant relief under Code of
Civil Procedure section 473, subdivision (b) in this situation. To the extent
that Court does have such discretion, the Court declines to exercise it here.
6.
Even if the Court were to grant discretionary relief, the
Court would find that many of the Requests for Production of Documents to be overbroad
Even if the Court were to have
granted discretionary relief, it would find that Requests for Production of
Documents Nos. 27, 28, 34, 35, 36, 37, 57, 58, 61 and 63 were overbroad. Further, Requests for Production of Documents
Nos. 34, 35, 36 and 37 invade the privacy rights of third-parties.
A.
Conclusion
Plaintiff’s
RPDs Motion is DENIED.
Plaintiff’s
FROGs Motion is DENIED.